Having regard to the observations submitted by
the respondent Government and the observations in reply submitted by
the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Dave Parris, is a British national.
He is now detained in the Central Prison of Nicosia, in Cyprus. He is
represented before the Court by Mr M.Shaw, professor of Law and barrister
practising in London.

A. The circumstances of the case

The facts of the case, as submitted by the parties,
may be summarised as follows.

On 24 February 1996 Mrs Augustina Parris was
found dead in the apartment where she lived with her husband. Some hours
later her husband was arrested and charged with manslaughter. The applicant
contended that his wife had committed suicide by throwing herself out
of the second floor window on the pavement below. The police reported
to the coroner that there was reasonable suspicion of violent death
or death brought about by an unknown cause. The coroner instructed pathologists
Professor Psaroulis and E. Antoniou to carry out a post mortem examination
of the body of the deceased. The examination was carried out on the
same day by these pathologists in the presence of Dr Matsakis (also
a pathologist) who was present as representative of the family of the
deceased and as an observer in pursuance of a relevant order by the
coroner. The pathologists concluded that a deep fracture of the scull
and brain and the inhaling of a quantity of blood had led to the victim’s
suffocation. In particular, Professor Psaroulis noted that the victim
had received blows in the neck which had distorted the vocal cords so
that the victim was unable to scream. Moreover, the bleeding of the
nose, the lips and the larynx brought about a huge bleeding of the respiratory
system so that the victim could not be in a position to take the decision
to fall from the window.

The coroner made an order for the immediate burial
of the body.

Dr Matsakis had also carried out a review of
the scene of the crime, at the request of the victim’s family, in
which he noted : “Regarding the above spots and splashes of blood,
it is the suggestion of the witness that they prove the manner in which
the deceased fell from the second-floor window. In particular, the witness
is of the opinion that the body was not ejected, as it happens in the
ordinary cases of persons falling by their own will, but it fell after
having come in touch with the front surface of the ledge under the window
of flat n° 4.”

After the post-mortem examination of the body,
Dr Matsakis concluded as follows: “In the area of the throat and the
respiratory system, the witness observed multiple bruises on the soft
tissues in the area of the larynx, in the front and the sides. The appearance,
the size and the position of the bruises suggested that they had been
caused by the exertion of forceful pressure by human fingers. He also
observed a suppressed total fracture of the right front gristle of the
larynx. According to the witness, this fracture suggests the exertion
of forceful pressure by the edge of a human thumb.”

On 27 February 1996, the father of the victim
filed an ex-parte application for ordering Dr Matsakis to carry out
a second post mortem examination. On the same day, the coroner dismissed
the application. On 28 February upon request of the relatives of the
victim and the oral authorisation of the Attorney General and the police,
Dr Matsakis carried out a second post mortem examination of the body.
The cause of death given by Dr Matsakis was strangulation.

On 28 March 1997 the applicant was convicted
by the Nicosia Assize Court of the offence charged and sentenced to
15 years imprisonment. The applicant challenged the accuracy of the
second post mortem examination. Dr Matsakis was exhaustively cross-examined
and the defence called their own expert witness, a professor of forensic
pathology at the Glasgow University. The Assize Court evaluated both
reports and decided to accept the evidence provided by Dr Matsakis by
a reasoning covering 13 pages of the judgment.

The applicant appealed on points of law to the
Supreme Court.

On 5 May 1999 the Supreme Court dismissed the
applicant’s appeal. It based its decision, inter alia, on the Schenk judgment of the European Court.

The Supreme Court held that the second post mortem
examination was illegal because, in the circumstances, it amounted to
a breach of Section 15(2) of the Coroners Law and of the order to bury
the body made thereunder.

The Supreme Court further held: “The relatives
of the victim had applied to the coroner for leave for the carrying
out of a second post mortem examination. Their application was dismissed.
Instead of seeking to quash this ruling through the procedures provided
for by law, they sought and succeeded the carrying out of a post mortem
examination through a relevant oral authorisation of the Attorney General
of the Republic and the police. What actually happened, amounted to
getting around the ruling of the coroner not through the procedures
provided for by the law but through means which are unknown to the law”.

The Supreme Court added that the fact that the
prosecution had the initiative in the preliminary examination and in
gathering material of evidence did not render the trial unfair. The
applicant had the opportunity to cross-examine witnesses against him
and enjoyed a full equality of arms in the proceedings.

Furthermore, the Supreme Court held: “However,
we note that the relevant illegality was brought about in an effort
to help the relatives of the victim, who, in their distress, were seeking
a second opportunity to investigate the circumstances in which their
beloved met her death”. The Supreme Court further stressed that besides
the evidence of Dr Matsakis, there was the evidence of the victim’s
father, who was at the flat of the first floor, right below the couple’s
flat, and whose narration reads as follows in the Assize Court’s judgment:
“Then, he heard a loud shout by the accused like roaring (he imitated
the roaring in the court room) and a few seconds later the noise of
something like a bundle falling on the floor. Then, after a few seconds,
he heard something like dragged steps as if somebody was dragging something
heavy, furniture being bumped and the noise of a window or a door being
opened.”

B. Relevant domestic law and practice

Article 15 § 2 of the Coroner’s Law Cap. 153
provides:

“An order authorising the burial or other disposal
of a body upon which it has been decided to hold an inquest may be issued
by the coroner at any time after the body has been viewed.”

Under the domestic laws of the Republic, a distinction
is drawn between the admissibility of illegally obtained evidence according
to the nature of the illegality. In the leading case of the Police v.
Andreas Georgiades (1982) 3 CLR 33, the Supreme Court held in the light
of Articles 34 and 35 of the Constitution that evidence obtained in
violation of constitutional rights and liberties was inadmissible.

If evidence is obtained by other illegal means,
its admissibility is a matter falling within the discretion of the trial
court. The domestic courts have adopted the principles established by
the English common law as set out by the House of Lords in the case
of R. v. Sang (1979) 2 All E.R. 1222. In practice, the test applied
under the common law is the same as that now applied in England under
section 78 of the Police and Criminal Evidence Act 1984, which was explained
in paragraph 38 of the Court’s judgment in the case of Kahn v. the
United Kingdom.

COMPLAINTS

1. The applicant alleges a breach of his right
to a fair hearing, guaranteed by Article 6 § 1 of the Convention, because
he was convicted on the basis of a sole evidence obtained in breach
of the relevant domestic law.

2. The applicant also claims that there has been
a breach of Article 13 of the Convention in that the legal system of
Cyprus does not provide an effective remedy with regard to a situation
where evidence is illegally obtained provided that no constitutional
provision has been breached.

THE LAW

The applicant alleges a violation of Articles
6 § 1 and 13 of the Convention which read as follows:

Article 6 § 1

“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a] ...
tribunal...”

Article 13

“Everyone whose rights and freedoms as set
forth in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”

The Government contend that the illegal post
mortem examination by Dr Matsakis was not the sole evidence on the basis
of which the applicant was convicted.

The testimony of Dr Matsakis contained evidence
which was “obtained” by him through a review of the scene of the
crime, the first post mortem examination and the second one. The illegality
was exclusively confined to the second examination. Vital findings were
made in the first examination and the review of the scene of the crime.
What Dr Matsakis actually did during the second post-mortem examination
was merely to verify further the findings he had already made. The Supreme
Court found that the evidence which was the result of the first examination
and in relation to which no objection was raised, led to the conviction
of the accused. Besides the evidence of Dr Matsakis, there was the evidence
of the victim’s father, who provided full support for the version
of Dr Matsakis. Finally, the contradiction between the evidence provided
by Dr Matsakis and that of Mr Psaroulis had no bearing on the question
of innocence of the applicant.

The Government invoke the principles enumerated
by the Court in the cases of Schenk v. Switzerland (judgment of 12 July
1988, series A no. 140) and Kahn v. the United Kingdom (judgment of 12 May 2000, n° 35394/97)
and concludes that there are no grounds on which to distinguish these
cases from the present case. Even in a sole evidence case (such as Kahn),
evidence obtained in breach of the Convention rights does not necessarily
breach an applicant’s right to a fair trial. The present application
was not a sole evidence case. The applicant was given the opportunity
both at trial and on appeal to challenge the admission of the evidence
on the basis of Article 6 of the Convention. He challenged the accuracy
of the second post mortem examination. Dr Matsakis was exhaustively
cross-examined and the defence called their own expert witness in an
effort to cast doubts on the accuracy of the conclusions of Dr Matsakis.
The alleged “unlawfulness” in the present case was a technical infringement
of domestic law which did not interfere with any Convention rights of
the applicant. The Coroners Law is intended to protect the integrity
of the body of the deceased and not the rights of the accused.

The applicant submits that the Government had
wrongly interpreted the sequence of events and contests their approach
consisting in distinguishing three separate pieces of evidence. The
review of the scene of the crime forms part of the actual post mortem
procedure and cannot be divorced from it. If illegally obtained evidence
needs to be excluded by statute on grounds inter alia of fairness, this must also apply to the earlier
stages of the same process.

As regards the first post mortem examination,
Dr Matsakis was present, as a representative of the family, but played
no active part in the proceedings. He did not make any “findings”
as the Government claim, since he did not conduct the post mortem. The
applicant highlights the contradiction between the first and the second
post mortem and submits that the actual cause of death is a matter of
great consequence in this case. As the Assize Court rejected that proposed
in the first post mortem, it cannot be stated that the results of it
constituted evidence upon which the Assize Court relied. As for the
evidence of the victim’s father, it could not on its own lead to the
applicant’s conviction. As the Supreme Court itself stated, it only
lent “support” to the version of Dr Matsakis. It is contrary to
equity in criminal procedure to treat evidence which is of its nature
capable of convicting an accused as the same as evidence which only
tends to corroborate the former.

The applicant stresses that where the sole evidence
is illegally obtained and cannot be considered as strong and reliable,
then the possibility of a finding of violation of Article 6 § 1 is
correspondingly higher. The applicant was convicted upon one sole evidence
which was illegally obtained and which cannot be regarded as pointing
irrevocably to the decision reached by the courts. The post mortem report
cannot be regarded evidentially as in the same category as a clear tape
recording of what was essentially a confession, as in the Kahn case.

The Court recalls that in the case of Schenk
v. Switzerland the Court held that it cannot exclude as a matter of
principle and in the abstract that unlawfully obtained evidence may
be admissible but it is necessary to ascertain whether the trial as
a whole is fair; the Court considered that the defence rights were respected
in that case and attached weight to the fact that the disputed evidence
was not the only evidence on which the conviction was based. In the
case of Khan v. the United Kingdom, the Court, although it found that
the evidence on the basis of which the applicant was convicted was obtained
in breach of Article 8 of the Convention, it concluded that Article
6 had not been breached.

In the present case, the Court notes that a first
post mortem examination was carried out by two pathologists instructed
by the coroner. As the family of the victim were not satisfied with
the conclusions of the report, they asked the coroner to authorise a
second examination. The coroner, who had in the meantime ordered the
burial of the body, refused to grant the authorisation. However, the
Attorney General gave his authorisation and a second post mortem examination
was carried out by another pathologist who concluded that another cause
had led the victim’s death.

The Court cannot agree with the applicant that
the domestic courts decided the present case on the basis of a single
evidence, namely the report by Dr Matsakis. It notes that both reports
were put before the Assize Court which decided to base its decision
on the second one, which was allegedly obtained contrary to the relevant
provisions of the Cypriot law, by a reasoning covering thirteen pages
of the judgment. The Supreme Court stressed that besides the evidence
of Dr Matsakis, there was also the testimony of the victim’s father
whose narration corroborated the findings of Dr Matsakis and which seriously
contradicted the applicant’s line of defence that the victim had jumped
out of the window by herself. Moreover the Court notes thatthe applicant was able to challenge the accuracy of the second
report and its author seems to have been exhaustively cross-examined
by the defence who were assisted by a professor of forensic pathology
at the Glasgow University. Besides, Dr Matsakis carried out a review
of the scene of the crime and participated in the first post-mortem
examination; his findings therein did not exclude at all, already at
that stage, the culpability of the applicant. In particular, Dr Matsakis
noted that the appearance, the size and the position of the bruises
in the area of the victim’s larynx suggested that they had been caused
by the exertion of forceful pressure by human fingers. He also observed
a suppressed total fracture of the right front gristle of the larynx;
this fracture suggested the exertion of forceful pressure by the edge
of a human thumb. Finally, even Professor Psaroulis who carried out
the first post-mortem examination and drafted the first report noted
that the victim had received blows in the neck which had distorted the
vocal cords so that the victim was unable to scream. Moreover, the bleeding
of the nose, the lips and the larynx brought about a huge bleeding of
the respiratory system so that the victim could not be in a position
to take the decision to fall from the window.

Furthermore, the Court cannot overlook the nature
and the scope of the provision of the domestic law which was breached.
It notes that Section 15 (2) of the Coroner’s Law forms part of the
provisions regarding the viewing of bodies and as such is primarily
intended, as the Government also emphasise, to ensure respect of the
corpse of a deceased and not of the procedural rights of an accused.

Finally, the Court notes that the applicant did
not fail to draw the attention of the courts to a possible violation
of Article 6 of the Convention and that the Supreme Court assessed the
effect of admission of the evidence on the fairness of the trial.

In these circumstances, the Court considers that
the proceedings as a whole were fair.

Finally, as regards the complaint under Article
13, the Court notes that the applicant raised this complaint before
the Supreme Court which dealt with the matter. Consequently, no issue
arises under this Article of the Convention

It follows that the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.